You might decide to accelerate the works. This is really what the employer wants and you fear that it has urged the architect not to certify an extension of time for precisely this reason. Unfortunately, however, your contract does not contain a clause expressly empowering the architect to instruct acceleration (with a consequent contractual right for the cost of that acceleration to be valued and paid to you). Can you recover your acceleration costs?
Some believe that in these circumstances, acceleration costs are not usually recoverable. However, that has to be considered a bit more closely. Although the architect acting as an independent certifier is not liable to claims by a contractor for undercertification (as long as it is not negligent), when it is not acting independently under the contract then it is acting as somebody's agent. In this case, it will be the employer's agent. If the architect negligently overcertifies the value of works undertaken by the contractor, it could be liable to the employer.
What happens, however, if the architect negligently undercertifies the value of its work? This was considered in Pacific Associates vs Baxter (1991, 1 QB 993), but I believe that it has not been entirely resolved and the question is still open as to whether, if the architect is negligent, there is any reason in principle why it should not be liable to the party suffering loss as a result.
There is a further twist to consider. You would have to look to the employer for a contractual remedy in these circumstances because you have no contract with the architect. This is where we find ourselves in the murky area known as "apparent" or "ostensible" authority. This could probably do with an article all to itself: suffice to say that if the employer has ratified the architect's unauthorised undercertification while urging you to complete the works by a certain time, the employer may be varying your contract. Consequently, it may be liable to you if you can establish your resulting loss.
There is a Commonwealth decision on this point, where the employer ignored the contractor's request for an extension of time and as a result the contractor accelerated to complete on time: Perini Corporation vs Commonwealth of Australia (1969, 12 Build. LR 90). This case is interesting because the contractor's claim was based exclusively on the certifier's breach, which was followed by the contractor's decision to accelerate. The contractor nevertheless successfully argued that it should be implied into the contract terms that, first, the employer should not interfere with the certifier's duties and, second, the employer should ensure that the certifier did his duty properly.
Consequently, Perini may well be relevant unless there is something in the contract to the contrary. Perini is not a decision of the English courts and therefore not binding, but it is at least a persuasive authority.
It is therefore crucial that not only has the architect undercertified but also the employer has urged you to complete within the original programme. You do not need to prove an implied instruction from the architect if you have an express instruction from the employer, which it is entitled to make under the contract.
How are your costs recovered? Usually, if it can be shown that the acceleration has been caused by an event for which you should have been compensated, there is no reason why the costs should not be recoverable as loss and expense and valued in the usual way under the contract. If they cannot be so valued, then it is likely that the claim can proceed as a contractual quantum meruit on the basis of the reasonable costs of the accelerated works.
Postscript
Simon Lewis is a partner at solicitor Dickinson Dees in Newcastle upon Tyne.
